Santos
v. Hawkins
Filed 1/18/13 Santos v. Hawkins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHELLEY M. SANTOS,
Plaintiff
and Appellant,
v.
RICHARD S. HAWKINS et al.,
Defendants
and Respondents.
E053882
(Super.Ct.No.
RIC515121)
APPEAL from the Superior Court of
County. Paulette
Durand-Barkley, Temporary Judge (Pursuant to Cal. Const., art.
VI, § 21) and Gloria Trask, Judge.
Shelley M. Santos,
in pro. per.; Richard D. Pfeiffer for Plaintiff and Appellant.
Ford, Walker, Haggerty
& Behar and Maxine J. Lebowitz for Defendants and Respondents.
Appellant Shelley
M. Santos appeals after the trial court granted
respondents, Richard S. Hawkins, D.D.S., and Lourdes P. Veronica Hawkins,
D.D.S. (collectively, the Hawkinses).
patient of the Hawkinses and had received dental care between 1995 and
2007. Santos filed a
complaint against the Hawkinses in 2008 for negligence based on allegations
that she had several problems with her teeth caused by the Hawkinses’
malpractice. Santos was unable
to find an expert to support her claims of
Santos makes three
claims on appeal:
1. The trial court erred by granting
summary judgment solely on the basis that she did not present an expert to
dispute the expert declaration presented by the Hawkinses attesting that the
dental care provided was within the standard of care.
2. The trial court erred by denying her
motion to compel discovery.
3. The trial court abused its discretion
by refusing to allow her to amend her complaint, which she requested in her
opposition to the summary judgment motion.
We affirm the trial
court’s judgment.
I
FACTUAL BACKGROUND
The Hawkinses were
husband and wife and operated their own private dental practice. Santos became their patient in December 1995. Complete X-rays were taken. At that time, she had a tooth infection on
tooth No. 14. She was referred to an
endodontist for treatment.
On February 13, 1996, Santos began treatment with the Hawkinses.
At that time, the Hawkinses identified Santos as having
periodontal issues. It was recommended
that she seek the services of a periodontist at least every four months for
treatment. Santos claimed she
was never advised of the periodontal problems but admits they appeared in her
dental records.
The Hawkinses
claimed that Santos refused the referral to a periodontist because she did not think
her insurance would pay for the treatment.
On February
28, 1996, she had root canal treatment on
tooth No. 3. In order to perform the
root canal, a bridge that had been installed by a previous dentist had to be
removed and recemented. Santos claimed that
she had had trouble with the bridge since it was recemented.
Throughout the
years of treatment, Santos received regular dental cleanings and periodontal treatment during
the cleanings. On April 17, 1996, she was again advised she should seek regular periodontal
treatment. Santos disputed
that she was ever advised to seek periodontal treatment. Santos claims she was not advised to seek deep cleanings until August 2006
when there was something found wrong with the bridge.
Santos continued to
complain about problems with tooth No. 18.
In November 1996, she received a permanent crown on tooth No. 18. On December 5, 1996,
when Santos’s occlusion
name="_ftnref4" title="">[3] had to be adjusted on the
crown on that tooth, she was advised that she needed a night guard but refused
to use it. Santos disputed
that she was ever advised that she needed a night guard.
On April 6, 2002, Santos was again advised to seek periodontal treatment but refused. Santos insisted she did not refuse periodontal treatment.
On September 6, 2003, Santos complained of mobility at tooth No. 3. The tooth was fractured on the surface. It was recommended that it be removed and
replaced with an implant. Implants were
placed on teeth Nos. 4 and 5 on September 27, 2003, and crowns
were placed over the top of the implants.
They were affixed with temporary cement until Santos could be
seen by a specialist as to how to fix tooth No. 3. Santos was referred to an oral
surgeon for tooth No. 3 because she needed a sinus lift in order to execute
the implant. She was also referred to an
orthodontist for an evaluation of her bite.
Her bite and malocclusion were impacting the restorative and implant
work. Santos stated that
tooth No. 3 had to be extracted in 2004.
She had several temporary crowns that broke. Santos was never advised that she was receiving temporary crowns. She admitted that she had been advised about
seeking treatment from an orthodontist and about a sinus lift. She decided to wait until the implants were
completed on teeth Nos. 4 and 5.
Santos was claiming
permanent bone loss of the left upper maxillary region; partial hearing loss to
her left ear; swelling of the left side of her face; loss of teeth Nos. 13, 14,
and 15 and possible loss of tooth No. 12; and incomplete restorations of
implants on teeth Nos. 4 and 5.
II
PROCEDURAL BACKGROUND
On December 15, 2008, Santos filed a complaint for damages claiming dental negligence (the
complaint) against the Hawkinses. Santos alleged that
between February
1, 1995, and December 15, 2007, she received dental care from the Hawkinses. She admitted that she had no specialized
dental training or dental education as a means to discover any misconduct,
negligence, or culpability. She alleged
that as a result of the Hawkinses’ negligence she lost several teeth due to
bone loss caused by progressive and untreated periodontal disease, aggravated
by the Hawkinses’ negligent restorative efforts causing damage to nerves,
periodontal apparatus, and the temporomandibular joints. Santos alleged she would suffer permanent
disability and would require future dental care, and she suspected a future
loss of earnings.
On July 2, 2009,
the Hawkinses filed an answer (the answer) denying every allegation in the
complaint. The Hawkinses responded that
Santos’s own negligence caused her injury, she was well aware of the probable
risks in getting treatment, and any injuries were the natural cause of being
treated for her condition.
On November 4,
2009, Santos filed a case management statement.
She clarified that she was alleging that the Hawkinses negligently
restored teeth lost from a “‘failed bridge’†and concealed that they were not
properly restored. Periodontal disease
that was untreated by the Hawkinses resulted in bone loss, loss of more teeth,
and hearing loss.
On July 15, 2010,
the Hawkinses filed their motion for summary judgment. Declarations were submitted from the
Hawkinses’ counsel, Richard, Veronica, and Edmond Hewlett, D.D.S. A statement of undisputed material facts was
also submitted, which we will discuss, post. The motion for summary judgment alleged that
dental malpractice could only be shown by expert testimony.
Richard and
Veronica both attested to the fact that they were the custodian of records at
their office and that Santos’s dental chart was maintained in the ordinary
course of business. They attested, under
penalty of perjury, that it contained any and all information related to the
care, diagnosis, evaluation, examination, recommendations, and referrals for
Santos. The chart was included with the
motion for summary judgment showing treatment of Santos between December 1995
and February 2008.
Dr. Hewlett, the
Hawkinses’ expert, declared that he was a prosthodontist and had been licensed
to practice in California since 1981. He
recounted his education and employment history.
His curriculum vitae was attached.
He declared that based on his training, education, and experience he was
familiar with the standard of care for general dentists and
prosthodontists. He had reviewed
Santos’s dental chart, including X-rays.
He had also reviewed records from other dentist offices and endodontic
groups from which Santos had received treatment.
Dr. Hewlett then
recounted the work done on Santos.
First, the implant of a crown on tooth No. 4 was performed within the
standard of care. Further, there was no
evidence from the records that the implant placed on tooth No. 4 was
“over-torqued†as alleged by Santos. Dr.
Hewlett declared that the design of a dental implant was such that the screw in
the implant is designed to break so that no damage would result on the implant
itself or the underlying bone structure.
There was no indication that the implant or screw was broken. It was not broken during the procedure.
The temporary
nature of the crowns on teeth Nos. 4 and 5 was appropriate since tooth No. 3
had to be fixed by a periodontist before permanent crowns could be placed on
Santos’s teeth. This treatment was
within the standard of care. Further,
Dr. Hewlett rejected that there was any failure on the Hawkinses’ part to
diagnose an occlusion in her bite prior to placing the implants on teeth Nos. 4
and 5.
Further, any
infection Santos had in tooth No. 12 was not evident from the records, and if
there was an infection, it was not caused by any care by the Hawkinses. Santos had a bridge on teeth Nos. 3 through 6
that was placed prior to treatment by the Hawkinses. The bridge was removed to perform a root
canal on tooth No. 3, and the bridge was recemented in place. It was performed within the standard of
care. All treatment of teeth Nos. 3 and
18 was within the standard of care.
Finally, as to the
failure to diagnose periodontal disease, Veronica advised Santos as early as 1996
that she had periodontal disease due to prior dental work. Santos was advised that she should receive
treatment from a periodontist every four to six months, but she refused the
treatment because it was not covered by insurance. Hawkins provided treatment during
cleanings. Dr. Hewlett concluded that
the Hawkinses’ treatment of Santos was “performed within the standard of care .
. . .â€
On September 22,
2010, Santos filed an ex parte application to continue the motion for summary
judgment. She explained that she had an
appointment with an expert and wanted to continue the matter to substantiate
her claims. She acknowledged that expert
evidence is generally necessary to show the standard of care in California.
On November 10,
2010, Santos filed her opposition to the motion for summary judgment. She admitted in her opposition to the summary
judgment motion that without an expert to establish the standard of care, she
would have a hard time proving her negligence claim. Santos sought to amend the complaint to add
claims for fraud, misrepresentation, and lack of informed consent. Santos did not have adequate time to file a
motion for leave to amend the complaint.
She alleged that there was a triable issue of fact as to whether or not
the Hawkinses were responsible for her damages sustained by an untreated
periodontal condition.
Santos had
consulted with an expert named Dr. Dennis G. Smiler, who stated that he would
examine her mouth and her records for a fee.
Dr. Smiler advised her, before she incurred any further costs, that she
likely would not prevail in a lawsuit.
He consulted with his attorney who further confirmed that she likely
would not prevail in a lawsuit. Despite
this warning, Santos paid Dr. Smiler for his expert opinion and review of
records. She attached a letter she
received from Dr. Smiler after the review.
According to the
letter, Dr. Smiler reviewed all of the records in the case. He also conducted an examination of Santos on
October 1, 2010. Dr. Smiler stated, “In
particular I find the records of Dr. Hawkins to be complete and
comprehensive. The records of Dr.
Hawkins are well organized and reflect dental care that is with the ‘standard
of care[.’] [¶] It is my opinion that the care and treatment
you received by Dr. Hawkins and other numerous clinicians involved in your
treatment, were within the standard of care.
As such I cannot recommend that you secure my services as an expert to
give credence to your case before the court.â€
The Hawkinses filed
a reply to the opposition. They
responded that in order to establish that they failed to adhere to accepted
standards of practice, such standards may be established only by qualified
expert testimony. The only expert
opinion proffered by Santos supported that the Hawkinses exercised the standard
of care. Further, Santos had failed to
properly seek leave to amend the complaint.
A hearing on the
motion for summary judgment was held on November 19, 2010, as will be discussed
in more detail, post. The motion was granted, and judgment was
entered on December 27, 2010. Santos
filed a motion for new trial, which was denied.
Santos appeals the
judgment entered as a result of the motion for summary judgment, as well as the
rulings on her motion to compel discovery and purported motion to amend the
complaint.
III
MOTION TO COMPEL
Santos complains
that the trial court erred when it refused to grant her motion to compel
further discovery.
A. Additional
Factual Background
On July 7, 2010,
Santos filed a motion to compel further responses to special and supplemental
interrogatories she had served on the Hawkinses. Santos complained that the Hawkinses were
withholding information. She also
claimed that a response to refer to her dental chart was not sufficient and
that the chart was indecipherable.
The Hawkinses filed
an opposition to the motion to compel.
They claimed that the responses to the interrogatories were complete and
that no further documentation beyond Santos’s dental records could be provided. Any further detail in interpreting the dental
records could be provided through depositions.
In addition, the Hawkinses contended that Santos had failed to comply
with the California Rules of Court requiring a separate statement, which Santos
had failed to include. Also, pursuant to
Code of Civil Procedure section 2030.300, she had failed to include with
specificity what interrogatories required further response, and she did not
meet and confer regarding the responses.
On August 9, 2010,
the parties appeared for a hearing. The
trial court continued the matter so that Santos could file a separate statement
that was supposed to be filed with the motion to compel.
On August 11, 2010,
Santos filed a separate statement of facts in support of her motion to compel
further responses to the special and supplemental interrogatories. She claimed that on May 24, 2010, she had
requested that the Hawkinses review their previously submitted responses to the
special and supplemental interrogatories and determine if there were any changes
or later-acquired information. On June
28, 2010, the Hawkinses had responded that they had no further
information.
Santos then
detailed the interrogatory responses she felt were inadequate.
meet-and-confer declaration in support of her motion to compel. She submitted correspondence between herself
and the Hawkinses’ counsel about further responses.
At the hearing on
the matter, Santos complained that the responses she received from the
Hawkinses to the interrogatories referred her back to the dental chart and were
incomplete. Santos contended that since
her dental records were difficult to read and understand, they should be
transcribed by the Hawkinses to clarify the abbreviations and medical
information. The Hawkinses argued that
they were not required to do this in written discovery; depositions and her own
expert could perform this task. All of
the information that Santos sought was in the dental records.
The trial court
stated that Santos had to be complete with dates and times in order to require
that the Hawkinses get more discovery.
Further, Santos’s own expert and depositions could clarify the dental
records. There was no authority in the
code to make the Hawkinses transcribe the records. The trial court felt that the Hawkinses had
no further discovery to give.
The trial court
ruled, “I’m denying these motions. No
sanctions, but you need to focus in on each of your issues. And in terms of the discovery, there are
other forms for discovery maybe to discuss what these charts mean, but that’s
not a further response to the discovery.â€
The trial court suggested that Santos take depositions or other
discovery.
B. Analysis
The trial court did
not error by denying the motion to compel. We review a trial court’s ruling on a motion
to compel discovery under the abuse of discretion standard. (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) “‘“Management of discovery generally lies
within the sound discretion of the trial court.†[Citation.]
“Where there is a basis for the trial court’s ruling and it is supported
by the evidence, a reviewing court will not substitute its opinion for that of
the trial court. [Citation.] The trial court’s determination will be set
aside only when it has been demonstrated that there was ‘no legal
justification’ for the order granting or denying the discovery in
question.â€â€™ [Citation.] [¶]
The foregoing standard is highly deferential to the trial court . . .
.†(Lickter
v. Lickter (2010) 189 Cal.App.4th 712, 740.)
Here, the Hawkinses
represented that there was nothing further they could provide in their
interrogatory answers. Santos briefly
mentions in her opening brief that she would have received additional evidence
of dental assistants who witnessed some of the treatment and the disclosures
that were made to her. She provides no
other argument on appeal as to how the trial court erred by denying the motion
to compel and how any further response to the interrogatories would have
provided the needed information. Based
on the Santos’s ability to depose the Hawkinses to obtain further information,
it was not an abuse of discretion to deny further responses to the
interrogatories at that stage of the process.
The only statements
in front of the trial court were that the Hawkinses provided full and complete
responses to the interrogatories. The
Hawkinses were entitled to object to questions if they were not properly formed. They repeatedly stated that they had no
further information to give, and the trial court was entitled to believe
them. At the time of the motion to
compel, the trial court did not abuse its discretion by denying further
response to the interrogatories.
IV
MOTION FOR SUMMARY JUDGMENT
Santos claims that
the trial court erred by granting the Hawkinses’ motion for summary judgment on
the sole ground that she failed to present expert testimony in her opposition.
A. Additional
Factual Background
On November 19,
2010, the parties appeared on the motion for summary judgment, which was
outlined, ante. The trial court tentatively ruled, “It’s the
court’s intention to grant the motion for summary judgment. [¶]
The opposition is not timely. I
did consider the opposition. However, the
opposition does not present any expert evidence to rebut the defendants’ expert
and evidence. [¶] The evidentiary objections I have granted in
part and sustained in part. I think the
fact that there is no plaintiff’s expert says it all. There are no triable issues of fact. And it’s the court’s intention to grant
it.â€
Santos then asked
the trial court if it had taken into account the fact that she wanted to amend
the complaint because of the way it was drawn up. The trial court noted that a motion for leave
to amend could not be incorporated into opposition to a motion for summary
judgment. Santos claimed she had just
become aware that she could have alleged differently in the complaint. Santos stated, “It’s just been very
frustrating and I feel like it’s an injustice to not be able to present my case
to the court because of the fact I don’t have an expert.â€
The trial court
noted that Santos did have an expert and that the expert disagreed with
her. It felt that Santos had an
opportunity to present her case to the court.
It granted the motion for summary judgment.
B. Standard
of Review
“A trial court may
only grant a motion for summary judgment if no triable issues of material fact
appear and the moving party is entitled to judgment as a matter of law. [Citations.]â€
(Schachter v. Citigroup, Inc.
(2009) 47 Cal.4th 610, 618.)
“[G]enerally, from commencement to conclusion, the party moving for
summary judgment bears the burden of persuasion that there is no triable issue
of material fact and that [s]he is entitled to judgment as a matter of
law.†(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn.
omitted.)
A motion for
summary judgment must be supported by “a separate statement setting forth
plainly and concisely all material facts which the moving party contends are
undisputed,†and each of those material facts must be “followed by a reference
to the supporting evidence.†(Code Civ.
Proc., § 437c, subd. (b)(1).)
“include a separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating whether the opposing
party agrees or disagrees that those facts are undisputed†and that sets forth
“any other material facts that the opposing party contends are disputed.†(§ 437c, subd. (b)(3).) The party opposing a summary judgment motion
is required to provide a reference to the supporting evidence for each fact
that is disputed. (Ibid.)
“On appeal after a
motion for summary judgment has been granted, we review the record de novo,
considering all the evidence set forth in the moving and opposition papers
except that to which objections have been made and sustained. [Citation.]â€
(Guz v. Bechtel National Inc.
(2000) 24 Cal.4th 317, 334.) “In performing
our de novo review, we must view the evidence in a light favorable to plaintiff
as the losing party . . . .†(Saelzler
v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
C.
Based on our review
of the motion for summary judgment, the accompanying declaration and documents,
and the opposition, we agree with the trial court’s conclusion.
The sole cause of
action in the complaint was dental malpractice.
“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and
diligence as other members of the profession commonly possess and exercise; (2)
a breach of the duty; (3) a proximate causal connection between the negligent
conduct and the injury; and (4) resulting loss or damage. [Citation.]â€
(Johnson v. Superior Court (2006)
143 Cal.App.4th 297, 305.)
“In a case of
professional malpractice, the standard of care against which the acts of the
professional are to be measured generally requires expert testimony. [Citations.]†(Flatt v. Superior Court (1994) 9 Cal.4th 275, 296.)
As a result, “expert opinion testimony is required to prove or
disprove that the defendant performed in accordance with the prevailing
standard of care [citation], except in cases where the negligence is obvious to
laymen.†(Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.) A defendant may therefore seek summary
judgment in a motion based on a well-supported expert declaration demonstrating
treatment of the patient was within the appropriate standard of care. (Jambazian
v. Borden (1994) 25 Cal.App.4th 836, 844.)
Throughout her
complaint, her opposition, and her responses to interrogatories, Santos
detailed problems she experienced with her teeth. However, she provided no testimony to refute
that the Hawkinses’ treatment was not within the standard of care.
Dr. Hewlett
submitted his curriculum vitae that outlined pages of his experience in
dentistry. He attested that he was
familiar with the standard of care for dentists in the counties of Orange, Los
Angeles, and Riverside. Dr. Hewlett went
through each claim made by Santos that could be discerned from review of the
dental records, X-rays, the complaint, Santos’s responses to interrogatories,
and Santos’s deposition (which was not made part of the record on appeal). Dr. Hewlett then went through each and every
claim raised by Santos and expressed his opinion, based on his review of the
records and his training and experience, that Santos’s treatment was within the
standard of care.
Santos did not
submit her own expert declaration in response.
Rather, she presented the declaration of Dr. Smiler. Dr. Smiler advised Santos that all care of
her teeth was performed within the standard of care. The trial court properly granted the summary
judgment motion due to Santos’s failure to submit an expert declaration. (See Willard
v. Hagemeister (1981) 121 Cal.App.3d 406, 412–414 [plaintiff’s failure to
submit declaration of an expert in opposition to summary judgment motion was
fatal to negligence cause of action for dental malpractice].)
Dr. Hewlett’s
declaration stated facts sufficient to sustain a judgment, and Santos did not
submit competent and sufficient evidence to present a triable issue of fact as
to any supposed malpractice. Therefore,
the issue of the Hawkinses’ negligence in the treatment of Santos was properly
resolved when the summary judgment motion was granted.
Santos’s relies on
519, claiming that the expert declaration was insufficient to shift the burden
to her because it was too conclusory, and Dr. Hewlett did not explain how he
reached his conclusions. In
unsupported by reasons or explanations does not establish the absence of a
material fact issue for trial, as required for summary judgment.†(Id.
at p. 524.) There the medical expert
simply summarized the treatment the plaintiff had received and stated in
conclusory fashion, “‘[the defendant] acted appropriately and within the
standard of care under the circumstances presented.’†(Id.
at p. 522; see also Johnson v. Superior
Court, supra, 143 Cal.App.4th at pp. 306-307 [defense declaration too
conclusory to satisfy defense burden].)
This case is unlike Kelley. Here, Dr. Hewlett had reviewed all of the
records in the case and explained his extensive experience. He explained why each treatment was
appropriate and within the standard of care.
Santos claims that
she was not advised that she had a periodontal condition that needed to be
addressed by an expert. She should have
been referred to an expert for her implants.
However, Santos’s claim in the complaint was that the Hawkinses
performed their dental work negligently, not that she was ill advised.
Finally, Santos’s
claims under the theory of res ipsa loquitur that she did not need to provide
an expert. “The ‘common knowledge’
exception is principally limited to situations in which the plaintiff can
invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to
say as a matter of common knowledge and observation that the consequences of
professional treatment were not such as ordinarily would have followed if due
care had been exercised.’
[Citation.] The classic example,
of course, is the X-ray revealing a scalpel left in the patient’s body
following surgery. [Citation.] Otherwise, ‘“expert evidence is conclusive
and cannot be disregarded.
[Citations.]â€â€™ [Citation.]†(Flowers
v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001,
fn. omitted.)
Santos failed to
establish that the “common knowledge†exception applied and no expert
explanation was required. Despite
Santos’s claim that her dental work was performed negligently, it is not within
common knowledge that periodontal disease may cause problems with a bridge or
implants. Moreover, it is not within
common knowledge how implants and crowns are installed.
In light of the
foregoing facts and circumstances, the trial court could properly grant summary
judgment.
V
MOTION TO AMEND COMPLAINT
Santos also
contends that the trial court abused its discretion by refusing to allow her to
amend her complaint to include allegations of lack of informed consent,
misrepresentation and fraud.
A. Additional
Factual Background
In her opposition
to the motion for summary judgment, Santos claimed that she was seeking to
amend her complaint to add causes of action for fraud, misrepresentation, and
lack of informed consent. As outlined,
leave to amend the complaint.
Santos also filed a
motion for new trial on December 9,
2010. She complained that the trial
court would not allow her to amend the complaint.
The Hawkinses filed
opposition. They argued that a separate
motion for leave to amend was required by California Rules of Court rule
3.1324(a)(1), and one was never filed. A
hearing was conducted on January 12, 2011.
The trial court indicated it intended to deny the motion for new
trial. It also noted that the issue of
wanting to amend the complaint was improperly included in the opposition to the
summary judgment and was not considered by the trial court. It indicated that Santos had failed to plead
these claims in the complaint. Santos
stated that she had someone else prepare the complaint, and she did not realize
it was deficient. The motion for new
trial was denied.
B. Analysis
“‘“[T]he trial
court has wide discretion in allowing the amendment of any pleading
[citations], [and] as a matter of policy the ruling of the trial court in such
matters will be upheld unless a manifest or gross abuse of discretion is
shown. [Citations.]â€â€™ [Citations.]â€
(Huff v. Wilkins (2006) 138
Cal.App.4th 732, 746.)
Code of Civil
Procedure section 473, subdivision (a)(1) provides for the opportunity to amend
a complaint. California Rules of Court
rule 3.1324, subdivisions (a) and (b) require that in order to amend a pleading
before trial, a copy of the proposed amended pleading must be submitted to the
court along with a declaration as to the need for the amendment and when the
facts giving rise to the amendment were discovered.
Santos never filed
a motion for leave to file an amended complaint as required by rule 3.1324 of
the California Rules of Court. Since she
failed to file the proper motion to amend the complaint, the trial court
properly denied it. “[M]ere
self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides
otherwise, the rules of civil procedure must apply equally to parties
represented by counsel and those who forgo attorney representation. [Citation.]
. . . A doctrine generally
requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to
the other parties to litigation.†(
975, 984-985.) Despite the fact that
Santos represented herself, she was not entitled to
issue raised in her opposition to the motion for summary judgment, rather than
in a formal motion seeking to amend the complaint.
Moreover, Santos
filed her complaint in December 2008 and did not seek an amendment until she
filed her opposition to the summary judgment motion in November 2010. She claimed she realized that she was not
going to win on a negligence standard and therefore sought to amend the
complaint so that she would have a viable cause of action. The trial court did not abuse its discretion
in refusing to allow Santos to amend the complaint at this late stage of the
proceeding. (See Huff v. Wilkins, supra, 138 Cal.App.4th at p. 746 [delay in
bringing amendment is valid reason for denial].)
VI
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
McKINSTER
J.
name="_ftn1" title=""> * Judge Durand-Barkley made the
contested ruling on the motion to compel discovery; Judge Trask made the
remainder of the contested rulings.
their first names, not out of any familiarity or disrespect, but to ease the
burden on the reader. (See, e.g.,
Cal.App.4th 801, 803, fn. 2.)
